October 23, 2009

Obama's Ethics Counsel Faces Tough Crowd at ABA Conference

President Barack Obama's special counsel for ethics and
government regulation Thursday afternoon gave an American Bar Association
crowd an insider's perspective into the administration's thought path as it first embarked on, and now continues to pursue, lobbying reform in Washington. But
his remarks did not go unchallenged.

Many thought Obama's promise of reform was just empty
campaign rhetoric, said Norman Eisen, but the president in fact has “a deeply
held personal view that political systems are susceptible to special interests”
and he “speaks of it often.” “The president will hold every government servant
to the highest standard of fidelity to the public interest,” Eisen told a crowd
of about 40 at the ABA Administrative Law Conference luncheon. “We think it is no
accident that we have had one of the most scandal-free starts of any
administration in modern history.”

Though Eisen refrained from outlining future steps, he said
Obama’s initial lobbying reform, particularly an executive order scribed by
Eisen and signed on Jan. 21 by the president, served to “send a message to
everybody that we were serious about the change.” The order restricted
registered lobbyists from government employment in areas they lobbied, among
other things. Eisen said there have been only three waivers in some 2000 posts
filled.

Following that order, the administration mandated disclosure
of lobbying or competitive grants for stimulus dollars to keep the process
transparent and opened up the White House visitor logs to the public. “We did
full transparency,” he said. “We’ll let the public decide who among them is a
lobbyist or not.”

The current and unfinished leg of Obama’s regulatory
pursuit—purging lobbyists from administration boards and commissions—is being
undertaken to bring fresh voices into policy-making discussions, Eisen
continued, saying: “We do not feel there is a monopoly on wisdom and talent
within the beltway.”

Still, critics like Thomas Susman, the ABA’s government
affairs office director, who joked when introducing Eisen to the crowd that he
was responsible for “vilifying and emasculating” lobbyists, questioned Eisen as
to why, if indeed these regulations are intended for the public interest, no
distinction is made between corporate lobbyists and those who lobby for public
interest causes. Eisen responded by saying that the administration did consider
parsing types of lobbying, but in the end, “felt that as a matter of principle,
we needed to be consistent in that regulation to have credibility.”

Sharing the stage Eisen and Susman, William Luneburg Jr.,
chair of the the ABA’s administrative law and regulatory practice section,
which sponsored the event, told Eisen that the definition of, “lobbyist,”
should be more consistent because some who don’t register as lobbyists still
fit the role and slip through the cracks into government positions. Eisen
responded, saying: “We thought it would be too burdensome to establish another
regulatory regime” and “we felt that as a matter of workability, that was just
too tough.”

An audience member also harangued Eisen for not consulting
with lobbyists before undertaking reform. Eisen said that in fact the
administration did, though only with those whose contribution would have had a
valuable impact.

Panel Discussion Continues Critiques of Regulation

The criticism didn’t stop at lunch. Immediately after Eisen’s
remarks, a panel discussion assembled down the hall in the Walter E. Washington
Convention Center. Panelist Nick Allard, of Patton Boggs, quipped that he was
“shocked” to hear Obama’s “fig-leaf counsel” complain about lobbyists because
shutting lobbyists out of government is forcing them to cut corners, including unregistering.

“Right now it’s popular to make a show of turning lobbyists
away from the front door while sending them around the back,” he said. “The
dirty little secret is the wink-wink policy toward lobbying encourages people
to do things the wrong way.” He urged the lobbying community to self-regulate
and hold itself to a higher standard of conduct so the government wouldn’t feel
the need to intrude.

Melanie Sloan, Executive Director of Citizens for
Responsibility and Ethics in Washington (a group that Eisen co-founded),
contended that the administration wasn’t doing enough to take the money out of
politics. She advocated publicly financed elections, but admitted it seems a
political impossibility right now. But small measures, like restricting
bundling or forcing disclosure in so-called “Astroturf” lobbying groups would
help, she said.

Finally, former U.S. Solicitor General and current Harvard
Professor Charles Fried addressed the constitutional implications of shutting
lobbyists out from government: He said there are none. “The constitutional
issue about the Obama executive order that we keep hearing about seems to me a
true nothing burger,” he said. “You have the right to petition, you don’t have
the right to be heard.”

But Fried said stonewalling lobbyists makes little sense and
ignores the real problem: Too much money in politics. He too advocated for
publicly financed elections. “There is something odd about denying access to
lobbyists when a lobbyist is really an advocate and is probably a really
knowledgeable advocate,” he said. “The solution obviously has to do with the
money.”

I'd also like to know why he said only three waivers were issued. That is absolutely incorrect. ABC's Jake Tapper and others have reported on numerous waivers. Those receiving waivers include: William Corr, Bill Lynn, Mark Patterson, Jocelyn Frye, Cecelia Munoz, and Naomi Walker. Richard Verma is another lobbyist working for the administration but they decided he simply didn't need a waiver! Other lobbyists include Patrick Gaspard and Ash Carter. Let's see, how many are we up to so far?
(http://conservativeamerican.org/dems-libs-socialists/dems-libs-socialists-obama/obamas-scandal-free-start/)

The President's ethics counsel is attacked for not consulting with lobbyists before drafting an executive order affecting lobbyists. Sounds like he was doing his job.

I was President Bush' ethics counsel and I did not consult with lobbyists before recommending how the White House should deal with lobbyists. I see no reason why Mr. Eisen should have to consult with the lobbyists, and every reason why he should not do so. Lobbyists get to write a lot of laws and regulations but they should not be permitted to write the rules regulating themselves.

I point out that lobbyists are a large part of the problem in my book Getting the Government America Deserves: How Ethics Reform Can Make a Different (Oxford U. Press 2009). Mr. Eisen and the President are at least trying to solve the problem and they do not need to go to the source of the problem for help.